Discover, No-Call Activist Are Ready for Court Battle

Diana Mey, a privacy advocate known as the "Erin Brockovich" of telemarketing, is embroiled in a legal fight that may take her where she has never been before: a state court hearing.

Until now, Mey, a Wheeling, WV, homemaker whose no-call lawsuits against corporations have made national headlines, never has been involved in a suit with proceedings beyond the small-claims level. Even her biggest case -- a 1998 suit against Sears that brought her into the limelight -- ended in an undisclosed out-of-court settlement.

Mey's latest adversary is the credit card marketer Discover. This time, Discover promises Mey a fight to the finish.

"Frankly, the claim she is making is not a legitimate claim," Discover spokeswoman Cathy Edwards said. "We don't pay for claims that are not legitimate."

Though she expressed surprise that Discover would fight the suit rather than settle, Mey said she isn't backing down either and has obtained a lawyer to represent her in the case.

Out-of-court settlements are common in no-call civil suits. Under the federal Telephone Consumer Protection Act, consumers may tell telemarketers who call them to cease calling, and if the request is violated, can sue for up to $1,500 per call.

Because of the amounts of money involved in no-call cases, corporations typically settle rather than go through the expense of a trial. However, Mey has history with Discover.

In 2001, Discover paid Mey $10,000 to settle a no-call lawsuit. After agreeing to the settlement, Mey said, Discover's lawyer requested that she agree to confidentiality as part of the deal. Mey refused, stating that the deal already had been made and Discover could not change it. She said she suspects that Discover is still angry about her refusal.

The current case involves calls Mey said she received after she moved to a new home at the end of 2002. Mey, who is a Discover cardmember, said she informed Discover of her new address and telephone number after she moved.

However, according to Mey, in January she received another call from Discover. The caller asked to speak with "Susan Mayer," apparently the last person to hold Mey's new phone number, according to a transcript Mey made of the call.

Mey said she received three more calls from Discover over two weeks. Each time she received a call, Mey requested that she be removed from Discover's calling list, according to the transcript.

Mey's position is that Discover knew her new number and, considering her account had been flagged as no-call for years, should have removed the number from its calling lists. Discover's spokeswoman declined comment on specifics of the case.

However, in a series of correspondence over the following months between Mey and Discover's corporate counsel, copies of which were provided to DM News by Mey, Discover said it had a record of only two of the calls. The company argued that it was calling not Mey but the previous holder of Mey's new phone number and thus was not in violation.

"While you purport to be a champion of stopping do-not-call violations, it appears in this case, where we were attempting to call someone else, you are merely threatening litigation solely for the purpose of financial gain," Discover assistant counsel Stace Sandler wrote in an Oct. 28 letter to Mey.

In one of her letters, Mey offered Discover a $10,000 settlement. Her lawsuit now calls for penalties of $27,000 for the four calls and various related charges, including failure to provide a copy of Discover's no-call policy in a timely fashion. Mey said she would use any money from the suit to fund a skate park in her hometown.

However the case turns out, Mey said she is hopeful for the future. The national no-call registry, which launched in October, has reduced the number of calls to her home, she said.

"I've gotten one or two calls since Oct. 1," she said. "My number is on the registry. I think it's going to work."

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